An employment equity report (EE report) was timely filed in South Africa, despite some technical glitches on the online portal, a court recently decided.
As most employers are aware, the Employment Equity Act, 1998 (EEA) places an obligation on designated employers to submit an annual EE report to the South African Department of Labor. When submitted manually, the reports are due for submission on the first working day of October. Online reports are due for submission on Jan. 15 each year.
Historically, many employers have experienced technical issues or glitches in the days before, and especially on the day of, online submission. This often results in EE reports being considered late, with department officials unwilling to accept any submissions after the deadline.
In the matter of Absa Bank Limited v Director General: Department of Labor, Absa Bank sought an order from the Labor Court declaring that it had complied with the EEA and that the Minister of Labor be directed to confirm that it has complied with the EEA.
In this matter, Absa Bank opted to use the online submission, and had captured its EE report into the data portal but had not officially submitted the report by clicking the “submit” button prior to the closure of the deadline. Absa alleges that it experienced technical difficulties with logging into the website in the 48 hours prior to the submission deadline. The Department of Labor then notified Absa after the deadline had passed that it had not submitted the report, and furthermore that officials of the Department of Labor had no authority to condone the “late” submission of the report.
The court approached the issue by considering the definition of “serve” or “submit” in the EEA. To serve or submit in relation to any communication means: to send it in writing, delivered by hand or registered post; to transmit it using any electronic mechanism that enables the recipient to print the communication; or to send or transmit it in any other prescribed manner.
The requirement or obligation imposed by the Department of Labor to press the “submit” button is merely administrative and not a statutory one, the court decided. Thus, once it is established that the communication was transmitted using the online mechanism, and that the Department of Labor could access and print that report, as contemplated in the definition of “serve” or “submit,” the employer has discharged its obligations. The court declared that Absa had complied with the provisions of the EEA.
In sum, when a designated employer has uploaded its EE report to the data portal, but is unable to click “submit” due to technical difficulties, such an employer has complied with its obligations in terms of the EEA and cannot be held to be noncompliant with its obligations in terms of the act.
Sherisa Rajah is an attorney with Fasken in Johannesburg. © 2019 Fasken. All rights reserved. Reposted with permission of Lexology.